Loss of Volume Submitter Status by Amendment (Posted December 8, 2004) Technical Tip 134: The following question and answer were from the IRS Q&A Session at the 2003 ASPPA Annual Conference: A volume submitter defined contribution plan is amended to provide for each NHCE to receive a minimum allocation of 5%, so that the plan can satisfy the gateway test and be eligible to satisfy the nondiscrimination requirements on the basis of cross-testing. Will this amendment cause the plan to become an individually designed plan? Response: The answer depends on whether the language used for the amendment had been approved as part of the volume submitter specimen plan. If so, then the plan remains a volume submitter, which may qualify for reliance without having to be submitted for a determination letter. If the language in the amendment has not been pre-approved as part of the specimen plan, then reliance will not be available unless a favorable determination letter is applied for and received. Comment by RLR&C ERISA attorneys: This Technical Tip is noteworthy because it highlights the fact that cross-tested language can be used in a Volume Submitter plan without causing the plan to become an individually designed plan, provided the language is specifically approved under the Volume Submitter Program. This is to be contrasted with the Master & Prototype Program, under which cross-tested language is NOT permitted. Thus, if a Master & Prototype plan is amended to include the cross-testing language, the amendment will cause the plan to become an individually designed plan. View all Tips © 2012 Reish Luftman Reicher & Cohen, a Professional Corporation Important notice: Answers are provided as general guidance on the subjects covered in the question and are not provided as legal advice to the questioner's situation. Any legal issues should be reviewed by your legal counsel to apply the law to the particular facts of your situation.